# Lal Jeet & Ors v. State of U.P

- **Citation:** (2023) 2 ILRA 551
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-27
- **Case number:** Criminal Appeal No. 6192 of 2011
- **Bench:** Suneet Kumar, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-jeet-ors-v-state-of-u-p-49713
- **Pages:** 19

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section
376(2)(g)

-
Gang
Rape
-
Informant, father of the victim aged about
7 years, lodged FIR, alleging that his
daughter, student of class-three was
playing outside the house at around 7
p.m. when three accused persons on the
pretext of bringing gutkha carried her to a
drain and forcibly raped her - Held - victim
deposed that all three accused persons did
bad things with her - They removed her
underwear and licked her legs - victim
was only 7 years old at the time of
incident and from the medical report and
the evidence, her testimony has been
corroborated - considering that it was a
case of gang rape by three persons with a
7 year old girl child, Court was of the view
that the trial court has rightly imposed the
sentence of life imprisonment and fine of
552 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.10,000/- each - The victim, a young
unmarried girl, aged about 19 years old &
accused
being
residents
of
the
neighbouring village, court was of view
releasing them could pose serious risks to
the victim's social and personal safety - no
mitigating circumstances to reduce the
sentence already imposed by the trial
court. (Para 60, 61, 63)

Dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,995 of 61,817. This is a partial read: ask again with offset=39995 for what follows._

2 All. Lal Jeet & Ors. Vs. State of U.P.
551
produced during the course of trial.
Interestingly, P.W.-6 has stated that nearby
the body of the Dharampal the Knives were
lying. It is surprising that when the knives
were already present nearby the dead body
of the deceased Dharampal how could the
prosecution claim that the knives (Ala
Katals) to have been recovered on the
pointing out of the accused-appellants,
separately. The recovery memo thus is not
reliable.

32. The trial court although has
referred to the testimony of P.W.6 and has
relied upon the recovery but the evidence
on record, in that regard has not been
carefully
examined.
We
hold
that
prosecution has not been able to establish
the guilt of the accused-appellants beyond
reasonable doubt. The accused-appellants
in the facts of the present case are clearly
entitled to the benefit of doubt.

33. Consequently, both the appeals
succeed and are allowed. The judgment and
order of conviction and sentence dated
14.8.2013 passed by Additional Sessions
Judge, Kach Sankya 1 Rampur in Sessions
Trial No. 193 of 2010 (State Vs. Ram
Kishor and another) arising out of Case
Crime No. 172 of 2010 against the accused
appellants, is reversed. The accusedappellants are held entitled to benefit of
doubt.

34. The accused appellants, namely,
Rama Devi and Ram Kishore, who are
reported to be in jail since 14th August,
2013 and 10.02.2010, respectively shall be
released forthwith, unless she is wanted in
any other case on compliance of Section
437-A Cr.P.C.

35. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Rampur henceforth, who shall transmit the
same to the concerned Jail Superintendent
for release of the accused-appellants in
terms of this judgment.
----------
(2023) 2 ILRA 551
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 6192 of 2011
with
Criminal Appeal No. 5681 of 2011

Lal Jeet & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Suresh Singh Yadav, Sri Kuldeep Johri,
Sri Ankur Singh Kushwaha (Amicus Curiae)

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code,1860 -
Section
376(2)(g)

-
Gang
Rape
-
Informant, father of the victim aged about
7 years, lodged FIR, alleging that his
daughter, student of class-three was
playing outside the house at around 7
p.m. when three accused persons on the
pretext of bringing gutkha carried her to a
drain and forcibly raped her - Held - victim
deposed that all three accused persons did
bad things with her - They removed her
underwear and licked her legs - victim
was only 7 years old at the time of
incident and from the medical report and
the evidence, her testimony has been
corroborated - considering that it was a
case of gang rape by three persons with a
7 year old girl child, Court was of the view
that the trial court has rightly imposed the
sentence of life imprisonment and fine of
552 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.10,000/- each - The victim, a young
unmarried girl, aged about 19 years old &
accused
being
residents
of
the
neighbouring village, court was of view
releasing them could pose serious risks to
the victim's social and personal safety - no
mitigating circumstances to reduce the
sentence already imposed by the trial
court. (Para 60, 61, 63)

Dismissed. (E-5)

List of Cases cited:

1. Bable Vs St. of Chhattisgarh, AIR 2012 SC
2621

2. Jarnail Singh Vs St. of Pun., (2009) 9 SCC
719

3. Bhagwan Jagannath Markad Vs St. of Mah.,
(2016) 10 SCC 537

4. St. of U.P. Vs Manoj Kumar Pandey, AIR 2009
SC 711

5. Santosh Moolya Vs St. of Karn., (2010) 5 SCC
445

6. Mukesh Vs St. NCT of Delhi & ors., AIR 2017
SC 2161

7. Munshi Prasad Vs St. of Bihar, 2002 (1) JIC
186 (SC)

8. Sudip Kumar Sen Vs St. of W. B., (2016) 3
SCC 26

9. Jarnail Singh Vs St. of Pun., 2009 (1)
Supreme 224

10. Syed Ibrahim Vs St. of Andhra Pradesh, AIR
2006 SC 2908

11. Avtar Singh Vs St. of Har., AIR 2013 SC 286

12. Sucha Singh Vs St. of Pun., (2003) 7 SCC
643

13. Bhagwan Singh Vs St. of M. P., 2002 (44)
ACC 1112 (SC)

14. Shyamla Ghosh Vs St. of W. B., AIR 2012 SC
3539,

15. Amit Vs St. of UP, AIR 2012 SC 1433

16. Hukum Singh Vs St. of Raj., 2000 (41) ACC
662 (SC)

17. Sadhu Saran Singh Vs St. of U.P., (2016) 4
SCC 357

18. Ashok Kumar Chaudhary Vs St. of Bihar,
2008 (61) ACC 972 (SC)

19. Nand Kumar Vs St. of Chhatisgarh, (2015) 1
SCC 776

20. Rohtash Kumar Vs St. of Har., (2013) 14
SCC 434

21. Sandeep Vs St. of UP, (2012) 6 SCC 107

22. Hukum Singh & ors. Vs St. of Raj., 2001
CrLJ 511 (SC)

23. Chhotanney Vs St. of U.P., AIR 2009 SC
2013

24. Gangadhar Behera Vs St. of Orissa, (2002) 8
SCC 381

25. Raja Vs St. of Karn., (2016) 10 SCC 506

26. St. of UP Vs Chhoteylal, AIR 2011 SC 697

27. Ganga Singh Vs St. of M.P., AIR 2013 SC
3008

28. St. of T. N. Vs Ravi @ Nehru, 2006 (55) ACC
1005 (SC)

29. Baijnath Sigh Vs St. of Bihar, 2010 (70) ACC
11 (SC)

30. Utpal Das Vs St. of W. B. AIR 2010 SC 1894

31. Vishnu @ Undrya Vs St. of Mah., (2006) 15
SCC 283

32. Solanki Chimanbhai Ukabhai Vs St. of Guj.,
AIR 1983 SC 484
2 All. Lal Jeet & Ors. Vs. State of U.P.
553
33. Gopal Krishan Vs St. of Pun., (2003) SCC
OnLine 280 (P&H)

34. Krishna Lal Vs St. of Har., AIR 1980 SC 1252

35. St. of Himachal Pradesh Vs Asharam, AIR
2006 SC 381

36. St. of Pun. Vs Gurmit Singh, (1996) 2 SCC
384

37. St. of Pun. Vs Ramdev Singh, AIR 2004 SC
1290

38. Bhura Vs St. of U.P., (2022) SCC OnLine
(All) 151

39. Thongam Tarun Singh Vs St. of Manipur,
(2019) 18 SCC 77

40. Manoj Mishra @ Chhotkau Vs St. of U.P.
(Criminal Appeal No.1167 of 2021 (arising out of
SLP (Cri) No.7828 of 2019)

41. Bavo @ Manubhai Ambalal Thakore Vs St. of
Guj., (2012) 2 SCC 684

42. Rajendra Datta Zarekar Vs St. of Goa,
(2007) 14 SCC 560

43. Dinesh @ Buddha Vs St. of Raj., (2006) 3
SCC 771

44. St. of UP Vs Naushad, AIR 2014 SC 384

45. Shyam Narayan Vs St. NCT of Delhi, AIR
2013 SC 2209

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. These appeals have been preferred
by the convicted accused appellants against
the order of conviction and sentencing
passed by ASJ, Court No.4, Pilibhit on
25.08.2011 in Crime No.1051 of 2010,
under Section 376(2)(g) IPC, PS Newriya,
District Pilibhit, whereby the accused
appellants were convicted under Section
376(2)(g) IPC and were awarded life
imprisonment and Rs.10,000/- fine each
and in case of non-payment of fine they
had to undergo for one year's additional
rigorous imprisonment.

2. Heard Sri Kuldeep Johri and Sri
Ankur Singh Kushwaha, learned amicus
curiae appearing for the appellants, learned
AGA for the State and perused the record.

3. At the outset as per CJM report
dated 11.05.2022 and the office report
dated 17.11.2022 the accused-appellant,
Lal Jeet has died, therefore, the appeal so
far as Lal Jeet is concerned, stands abated.

4. In brief, facts of the case are that
informant Tej Ram, father of the victim
aged about 7 years lodged FIR in PS
Newriya, District Pilibhit, alleging that on
30.09.2010 his daughter, student of classthree in primary school, Tandola, was
playing outside the house at around 7 p.m.
when Lal Jeet, son of Budh Sen, Tej
Bahadur, son of Hori Lal, and Chintu, son
of Kali Charan, residents of neighbouring
Village Himmat Nagar @ Chiraindapur, on
the pretext of bringing gutkha carried her to
a drain situated in the east of the village
and forcibly raped her. The victim did not
return for a long time, her parents along
with other villagers went to search with
torches, and heard the victim's scream
coming from the side of the drain, then the
informant, his wife Tarawati, his elder
brother Ram Pal, younger brother Prem Pal
and many other villagers reached there, and
saw that Lal Jeet and Chintu were catching
hold his daughter and Tej Bahadur was
doing bad things with her. Seeing them all
the three accused persons ran away leaving
the victim covered in blood. In the morning
all three were again seen in the village. The
villagers were very angry and agitated, they
caught them. The victim was taken to
554 INDIAN LAW REPORTS ALLAHABAD SERIES
Kusum Hospital, Pilibhit, for treatment at
night. They could not go to the police
station due to lack of facilities and
thereafter brought the girl and the accused
to the police station. Informant requested to
register the report and take necessary
action.

5. On the basis of the written complaint
the case was registered against all the three
accused persons being Crime No.1051 of 2010,
under Section 376 IPC. The Investigating
Officer (I.O.) started investigation, recorded the
statement of the witnesses. The victim was
medically examined, X-Ray was done and
supplementary medical report was prepared.
Visiting the spot along with the complainant a
map was drawn and the shirts and underwears
of the accused were taken into possession and
sent to FSL by the I.O. On finding sufficient
evidence against all the three appellants a
charge sheet under Section 376 IPC was
submitted to the court. The case was committed
to the court of sessions wherefrom the file was
transferred to the concerned court.

6. On 31.01.2011 accused persons
were charged under Section 376(2)(g) IPC.
They denied the charge and claimed trial.

7.

The
prosecution
examined
following witnesses to prove the charges:-

(i) PW-1, informant, Tej Ram;
(ii) PW-2, victim; (iii) PW-3, Dr. R.K.
Maheshwari; (iv) PW-4, Constable Netra
Pal Singh; (v) PW-5, Dr. Mahavir Singh;
(vi) PW-6, S.O, Tapeshwar Sagar; (vii)
PW-7, Dr. Vijay Laxmi.

8. The prosecution produced the
following documentary evidence to prove
the prosecution case:-

(i) Ex.Ka-1, written complaint;
(ii) Ex.Ka-2, X-Ray report; (iii) Ex.Ka-3,
chik FIR; (iv) Ex.Ka-4, photocopy GD; (v)
Ex.Ka-5, report of the vaginal slide; (vi)
Ex.Ka-6, map; (vii) Ex.Ka-7, recovery
memo of underwear and shirt of the victim
and upper cloth of the pocket of the shirt of
the accused, Tej Bahadur; (viii) Ex.Ka-8,
recovery memo of the blood stained
underwear of the accused persons upon
which as per investigating officer there was
blood of the victim; (ix) Ex.Ka-9, charge
sheet; (x) Ex.Ka-10, medical report of the
victim; and (xi) Ex.Ka-11, supplementary
medical report of the victim.

9. Following material exhibits were
produced during the trial:

(i) Material Ex.1, X-Ray plate
and underwear of the victim; (ii) Material
Ex.2, shirt of the victim; (iii) Material Ex.3,
underwears of the accused persons.

10. After closer of the prosecution
evidence
statement
of
the
accused
persons were recorded u/s 313 CrPC. All
the accused persons denied the case and
the allegations. In addition to that
accused Lal Jeet stated that before this
incident Salig Ram and Bhimsen of his
village had contested the election of
Gram Pradhan. Bhimsen had won the
election. The complainant and Bhimsen
felt bad. The injury to the daughter of the
informant was caused at some other place
or in some other manner, but due to
electoral rivalry he has been falsely
implicated.

11. Accused Chintu had also denied
the prosecution version of the case and in
addition to that has given the same
explanation. Tej Bahadur has also given
similar explanation. Accused appellants
have not produced any evidence in their
defence.
2 All. Lal Jeet & Ors. Vs. State of U.P.
555

12. It would be proper to produce a
brief narration of the evidence of the
witnesses.

13 . According to PW-1, informant,
Tej Ram, accused persons are the residents
of the neighbouring village Charaindapur.
At the time of incident his daughter aged
about 7 years, student of class-three, was
playing outside of the house at about 7 p.m.
On the pretext of bringing gutkha, accused
took her outside the village to a dirty drain.
All the three accused raped the victim.
When she was not seen, PW-1 and others
went out to search her. On hearing her cry,
he reached near the drain along with Ram
Pal, Prem Pal and his wife. They saw that
Tej Bahadur and Lal Jeet were holding her
while Lal Jeet was raping her. She was
covered in blood. Seeing them, all the three
accused ran away. PW-1 took the victim to
the hospital. Next day in the morning all
three accused persons were again seen in
the village. He caught them with the help of
the villagers. Thereafter, they went to the
police station. The report was written by
Amarjeet outside the police station. The
witness has proved the written complaint
Ex.A-1. He had given the complaint to
diwanji who wrote a report on that basis.
Investigating
Officer
had
taken
his
statement at the police station.

14. During cross-examination the
witness recognized all the accused persons
and in reply to the questions repeated the
version of the examination-in-chief and
admitted that before him the accused
persons did not take his daughter for taking
gutkha. When the girl did not come for an
hour, he went out to search her with 10-15
villagers with torches, but without sticks.
When she was taken away, she was
wearing black shirt and blue jeans. When
he reached near the drain, the sound of her
crying was heard. Her bloodied pant and
shirt were lying there. The girl was in an
injured condition. She was conscious for a
while and then fainted. When he reached
the spot, all the three accused were also
there. They tried to catch them but they ran
away. His daughter was about 300 yards
away when he flashed the light. They were
to the west of the girl. When the torch was
lit first, these accused persons were near
the girl and had caught hold her but later on
fled after seeing the light. Their faces were
visible. The pant of accused Lal Jeet and
Tej Bahadur had come off and the
underwear was sliding down. They were
trying to take the girl away. The accused
had run away with their pants. After
reaching there they took the girl to the
hospital where he was advised to take her
to the government hospital. Thereafter, the
girl was taken to the police station and
therefrom to the Government Hospital,
Newriya, where they were referred to the
District Hospital, Pilibhit. His three shirts
were stained with the girl's blood. Munshi
had said to write whatever you want to
give. Two sarees of his wife were stained
with blood. Amar Deep had taken his
signature. He had narrated the complaint to
Amar Deep and none else. He did not give
blood stained shirt and wife's sarees to the
Investigating Officer but the blood stained
clothes of the girl were given to him. He
went to the government hospital where
doctor seeing the deteriorating condition of
the girl referred her to Government
Hospital, Pilibhit, where she was admitted
for 13 days. For two days the girl remained
unconscious, then she started regaining
consciousness.
Accused
were
caught
together in the morning and taken along
with them. After admitting the girl he did
not go to the village and stayed together.
His daughter was found in an empty place
and there was a ditch before it. West of it is
556 INDIAN LAW REPORTS ALLAHABAD SERIES
the garden of Ganga Ram. North is a road
which goes to Sanjana. There is a drain in
the south which would be 1.5 meter wide
and 1 meter deep and is flooded during the
rainy season. Paddy was harvested at that
time. The witness denied that due to the
enmity of Gram Pradhan election he felt
bad and has falsely implicated the accused
persons. He also denied that his daughter
had sustained injuries elsewhere and in any
other manner. He had stated to the
Investigating Officer that he was carrying
the torch, if he did not write, he cannot tell
the reason. If it is not written in the
complaint, he cannot tell the reason. He
replied that it is wrong to say that today for
the first time in the court he was telling
about seeing the incident in the light of
torch. Two torches were shown to the
Inspector but he neither took it in
possession, nor, did he write it.

15. PW-2, victim was firstly tested
under Section 118 of the Indian Evidence
Act, 1872 (in short ''the Act, 1872'), and
when the court found that she understands
the meaning of affidavit and is capable to
be testified, she was testified on oath, she
deposed that she knows the accused
persons but does not know them by name.
They are the residents of Chiraindapur. At
the time of incident she was playing outside
her house. These three accused persons
came to her, asked her to bring gutkha and
took her outside the village. There was
farm land on both sides where these three
did dirty work with her. They removed her
underwear and licked her legs. Pointing
towards accused Tej Bahadur, the witness
said that earlier he did bad things with her.
Then pointing towards Lal Jeet she told that
he had done bad things with her, then
pointing towards the third accused Chintu
she said that he did bad things with her.
She was playing. Chintu had given her
some medicine. Pointing towards Chintu
she told that he had pressed her neck. After
doing bad things with her all the three
accused ran away. Her father, uncle and
elder uncle came from her house and had
seen these people on the spot. Her mummy
dressed her at home. Her father took her to
the doctor at night.

16. In cross-examination she replied
that when she was playing outside the
house, accused persons carried her in their
arms in the dark night. At that time her
father and uncle were not there, brother
was there. She cried and shouted then these
accused persons gave her medicine. Her
brother did not cry. When she cried,
villagers did not reach the place where she
was taken. Her elder brother had called his
parents. Father, uncle and elder uncle had
come later. The accused persons had taken
her outside the village and pushed her, she
fell on the ground. Her head collided on the
ground and hurt her back. The injury was
severe. She was conscious when her father
came there. She regained conscious after
some time. Therefrom she had come with
her parents near the government tap which
is away from her house and is installed in
front of the field. She had informed her
parents, uncle and elder uncle that three
persons had taken her away. The villagers
had caught these three and brought them. It
is wrong to say that she was giving false
testimony at the behest of her parents and
other people. It is wrong to say that the
accused persons had not taken her. It is
wrong to say that she suffered injury in
some other manner or in any other place.

17. PW-3, Dr. R.K. Maheshwari,
radiologist deposed that he had prepared XRay report of the victim and found: (i) right
knee joint epiphysis around knee joint were
not fused (ii) about right wrist joint, he
2 All. Lal Jeet & Ors. Vs. State of U.P.
557
found that epiphysis around wrist were not
fused. He proved X-Ray report Ex.Ka-2
and X-Ray plate Material Ex.1. He denied
the suggestion that he had done X-Ray of
any other person in place of the victim. He
also denied that forged X-Ray report was
prepared by him.

18. PW-4, Constable Moharrir, Netra
Pal Singh, has proved chik FIR Ex.Ka-3
and kaymi GD Ex.Ka-4 and deposed that
on 30.09.2010, at 10:20 a.m, he had
prepared chik FIR and had entered the case
in original G.D. In cross-examination he
admitted that no date is mentioned
regarding presentation of chik FIR before
the concerned C.O. He further replied that
this chik FIR was presented before C.J.M.
on 04.10.2010. He admits that special
report is not available in the file. He also
admits that name of the persons who came
to lodge the FIR has not been mentioned in
G.D. Ex.Ka-4. It is also not mentioned that
how the accused were tied and from which
vehicle they were carried to the police
station. He admits that injuries of the
accused persons are not mentioned in
Ex.Ka-4, but he denied the suggestion that
Ex.Ka-3 and Ex.Ka-4 were forged and
ante-timed.

19. PW-5, Dr. Mahavir Singh, Senior
Consultant,
District
Hospital,
Pilibhit,
deposed that on 01.10.2010, he had
examined vaginal smear slide of the victim
sent by Dr. Vijay Laxmi of PHC, Newriya.
He deposed that in examination he did not
find spermatozoa but he found red blood
cells in large quantity. He proved his report
Ex.Ka-5. He denied that he was falsely
deposing.

20. PW-6, S.O, Tapeshwar Sagar,
deposed that on 30.09.2010, the case was
lodged
in
his
presence.
He
started
investigation, copied chik FIR, recorded the
statement of the informant, FIR writerNetra Pal Singh and the statement of the
accused persons. He copied the medical
report, inspected the place of occurrence
and prepared the map Ex.Ka-6. He took the
lining of the pocket of the accused Tej
Bahadur and underwear and shirt worn by
the victim, sealed it and prepared specimen
seal. He prepared recovery memo Ex.Ka-7
in his hand writing. He also took blood
stained underwear of all three accused and
kept in polythene, did chitbandi and put in
cloth sealed, prepared specimen seal and
recovery memo Ex.Ka-8 in his own hand
writing, copied both the recovery memo in
C.D, recorded the statement of witnesses of
recovery, witness Prem Pal, victim and
Tarawati, copied the pathology report and
X-Ray report, recorded the statement of S.I,
Rajendra Babu, Constable Netrapal Singh,
Home Guard Daulat Ram and complaint
writer Amar Deep. On 27.10.2010 he sent
the clothes to FSL, Lucknow, through
Constable, Subedar Singh. He proved the
docket
Ex.Ka-8.
He
copied
the
supplementary report and submitted charge
sheet Ex.Ka-9 to the court. During the
testimony he proved the underwear and
black shirt of the victim as Material Exs.1
and 2, underwears of the accused-persons
as Material Exs.3, 4 and 5 respectively.

21. In cross-examination this witness
replied that witness Tej Ram or the
villagers had not produced the torch used
by them. Tej Ram had informed the names
of some witnesses, such as, Prem Pal, Ram
Pal and Tarawati and had not informed the
names of 10-15 persons. He admits that till
the time of submission of charge sheet,
FSL report was not obtained. He has
admitted that concerned G.D. is not
referred in case diary, its copies are also not
available on the file. He admits that he has
558 INDIAN LAW REPORTS ALLAHABAD SERIES
not entered time of closer of investigation
in C.D. According to him he did not find
blood on the spot but had found blood on
the shirt of the victim which is not written
in Ex.Ka-7. According to him there was
blood on the underwears of the accused
persons which is written in recovery memo.
It was prepared at police station. Recovery
memo (Ex.Ka-7) of victim's clothes was
prepared on spot. He admits that in Exs.Ka6, 7 and 8 names of the accused persons are
not mentioned. On asking the colour of the
underwears of the accused persons, he
replied that one underwear is brown and the
second is green in colour and another is
light almond colour. He further deposed
that underwear of the victim is brown in
colour. One shirt is black. He further
deposed that Tej Ram and his wife neither
showed their blood stained clothes, nor,
those were taken into possession. He
denied the suggestion that he had done all
the investigation sitting at the police station
and has submitted false charge sheet on the
basis of fake investigation. He denied that
Exs.Ka-6, 7 and 8 were prepared ante-time.

22. PW-7, Dr. Vijay Laxmi deposed
that on 30.09.2010, during her posting she
had examined the victim, at 11:30 a.m.
brought by Constable Durga Prasad, Police
Station Newriya, with injury letter.

23. During the internal examination
she found that the outer part of the victim's
vagina was swollen and red in colour. It
was very difficult to do the internal
examination. The victim was fainting
repeatedly due to pain and swelling. The
vagina was cut from both sides and fresh
blood was oozing. There were deep wounds
up and down inside the vagina opening
from which blood was oozing. The lower
wound was up to the anus. The lower part
of the inside vagina was coming up to the
anus. There was deep wound inside the
vagina that its examination was difficult. In
the
said
situation
the
victim
was
immediately
referred
to
the
surgery
department for advance treatment. X-Ray
was advised to determine her age, hence,
referred to the radiologist. Two samples of
the
victim's
vaginal
discharge
were
prepared. It was sent to the pathology for
examination. She had prepared the medical
report
Ex.Ka-10
and
supplementary
medical report Ex.Ka-11 on 20.10.2010, in
her own writing. The injury of the victim
was of serious nature and fatal for her life
due to which she could have died.

24. In cross-examination this witness
admitted that she had not given any opinion
about rape. On asking by the court the
witness replied that the condition of the
child was so serious that she did not think
about the opinion of rape. The girl was
fainting and there was heavy bleeding
which could prove fatal. Further, she was
questioned why was the girl sent to you.
She answered that the victim was sent for
testing, if she had died during examination
its responsibility would fall on her. On
asking whether she read injury letter. She
answered that she had read it, wherein, it
was requested to inform about the medical
result and report whether the victim had
been raped. On asking whether the victim
was raped or not, she replied that there was
no clear narrative about rape, that is why
she did not give clear report. When there is
no possibility of someone dying, the victim
gives a clear opinion regarding rape, the
girl's condition was so bad that is why she
could not think about it. On asking when a
woman is in very serious condition, one
gets emotional and forgets everything. She
replied not on emotion, she wanted to refer
the victim for proper treatment. A question
was
again
put,
whether
in
the
2 All. Lal Jeet & Ors. Vs. State of U.P.
559
circumstances would suggest that the
victim was raped. She replied that if there
is fresh injury in the internal organs then I
would give an opinion, I am sure that she
has been raped. A question was again asked
that the victim of this case had suffered
injuries on her internal organs then in that
case why did she not give an opinion
regarding rape. She replied that she made a
mistake at that time, did not pay attention.
On being questioned whether she did it
intentionally.
She
replied
that
it
is
impossible.

25. After that learned counsel for the
accused persons started cross-examination,
to which she replied that in injury report,
pathology report, supplementary medical
report and X-Ray report she had not
mentioned about the opinion of rape. She
further replied that the victim was raped,
she is saying not on the basis of memory
but after seeing the report. She admits that
in her report she did not give any opinion
regarding rape of the victim. Life of the
victim would have been lost, is not in her
report. The hymen gets torn when the
victim was raped. In her report it is written
that it is difficult to identify the hymen
separately. PW-7 further replied that in
internal organs of the victim, semen was
not found anywhere. If a girl falls or
collided on a cut sugarcane or cut structure
or cut round stick and the bite goes towards
the anus, it is not possible to get such
inquiries. On falling the injury would come
at one place. The nature of injury suffered
by the victim cannot come from sliding and
falling. It is correct to say that the victim
must have been raped. But PW-7 admits
that she has told this for the first time in the
court today and had not mentioned it in any
report. She denied the suggestion that she
was not telling the right things and she was
lying in the court and is not giving correct
statement
based
on
the
medical
examination report.

26. After closure of the prosecution
evidence statement of all the three accused
persons were recorded u/s 313 CrPC as
already mentioned at page-4 wherein they
denied
the
allegations
and had not
produced any evidence in defence.

27. The appeal is being decided in the
backdrop of above noted evidence as
under:-

I. In this case, according to
prosecution the occurrence took place on
29.09.2010, at about 07:00 p.m. in the
evening, FIR was lodged on 30.09.2010,
being Crime No.1051 of 2011, under
Section 376 IPC against the named
accused-appellants at 10:20 a.m. The
distance
of
police
station
from
the
concerned village is 9 kms, after the
incident, the victim was first admitted in
Kusum Hospital, Pilibhit, in the night and
thereafter,
she
was
referred
to
the
Government Hospital, Newriya, Pilibhit,
from there victim was referred to the
District Hospital, Pilibhit, for further
treatment.

II. Next day on 30.09.2010 the
accused persons were caught by the
informant and the villagers. Thus, it cannot
be said that any undue delay was caused in
lodging the FIR.

III. In Bable Vs. State of
Chhattisgarh, AIR 2012 SC 2621, it is
held that FIR is not a substantive piece of
evidence and it is not an encyclopedia. In
Jarnail Singh Vs. State of Punjab, (2009)
9 SCC 719 and Bhagwan Jagannath
Markad Vs. State of Maharashtra,
(2016) 10 SCC 537, it is also held that the
560 INDIAN LAW REPORTS ALLAHABAD SERIES
only requirement is that at the time of
lodging the FIR, the informant should state
all those facts which normally strike to
mind and help in assessing gravity of the
crime or identity of the culprit briefly.

IV. In State of UP Vs. Manoj
Kumar Pandey, AIR 2009 SC 711,
(three-Judge-Bench)
and
in
Santosh
Moolya Vs. State of Karnataka, (2010) 5
SCC 445, it is held that normally the
prosecution has to explain delay and lack of
prudence does not apply per se to rape
cases.

V. In Mukesh Vs. State NCT of
Delhi and others, AIR 2017 SC 2161
(three-Judge-Bench), Munshi Prasad Vs.
State of Bihar, 2002 (1) JIC 186 (SC) and
in several other cases it has been held that
if causes are not attributable to any effort to
concoct a version and the delay is
satisfactorily explained by prosecution, no
consequence shall be attached to mere
delay in lodging the FIR and the delay
would not adversely affect the case of the
prosecution. Delay caused in sending copy
of FIR to Magistrate would also be
immaterial if the prosecution has been able
to prove its case by reliable evidence. Thus,
it is concluded that there is no delay in
lodging the FIR in this case.

VI. The present case is based on
direct evidence and on the evidence of
the victim. Hence, there is no need to
prove the motive behind the commission
of crime. From the evidence the mens rea
to commit the alleged offence has been
proved beyond reasonable doubt. It is
also proved from the evidence of the
prosecution witness that there was no
enmity or false implication of the accused
persons. In the said crime though the
accused persons have suggested the
witnesses of fact that due to enmity of
Gram Pradhan election the accused
persons have been falsely implicated, but
it is not proved that either the accused
persons or any family member of their
family or any friend was the candidate in
Gram Pradhan election.

VII. Burden of proof rests on
the shoulder of the prosecution. As per
section 134 of the Act, 1872, no
particular number of witnesses is required
to prove any fact. Plurality of witnesses
in a criminal trial is not the legislative
intent. If the testimony of a sole witness
is found reliable on the touchstone of
credibility, accused can be convicted on
the basis of such sole testimony as held
in Sudip Kumar Sen Vs. State of West
Bengal, (2016) 3 SCC 26, Jarnail Singh
Vs. State of Punjab, 2009 (1) Supreme
224, Syed Ibrahim Vs. State of Andhra
Pradesh, AIR 2006 SC 2908, Avtar
Singh Vs. State of Haryana, AIR 2013
SC 286.

VIII. In this case only informant,
father of the victim and the victim were
examined as eye-witness.

IX. In Sucha Singh Vs. State of
Punjab, (2003) 7 SCC 643, Bhagwan
Singh Vs. State of Madhya Pradesh,
2002 (44) ACC 1112 (SC), Bhagwan
Jagannath Markad (supra), Shyamla
Ghosh Vs. State of West Bengal, AIR
2012 SC 3539, Amit Vs. State of UP, AIR
2012 SC 1433 and in so many other cases it
is held that the testimony of a witness in
criminal trial cannot be discarded merely
because the witness is a relative or family
member of the victim of the offence, in
such situation the court has to adopt careful
approach in analysing the evidence of such
witness and if the testimony of the related
2 All. Lal Jeet & Ors. Vs. State of U.P.
561
witness is otherwise found credible, the
accused can be convicted on the basis of
testimony of such related witness.

X. In Hukum Singh Vs. State of
Rajasthan, 2000 (41) ACC 662 (SC),
Sadhu Saran Singh Vs. State of UP, (2016)
4 SCC 357, Ashok Kumar Chaudhary Vs.
State of Bihar, 2008 (61) ACC 972 (SC)
and in Bhagwan Jagannath Markad
(supra), it is held that non-examination of the
material evidence is not a mathematical
formula for discarding the weight of the
testimony available on record however
natural, trustworthy and convincing it may
be. It is settled law that non-examination of
eye-witness cannot be pressed into service
like a ritualistic formula for discarding the
prosecution case with stroke of pen. Court
can convict an accused on statement of a sole
witness even if he is relative of the deceased
and non-examination of independent witness
would not be fatal to the case of prosecution.

XI. In Nand Kumar Vs. State of
Chhatisgarh, (2015) 1 SCC 776, Rohtash
Kumar Vs. State of Haryana, (2013) 14
SCC 434 and Bhagwan Jagannath Markad
(supra), it is held that prosecution need not
examine its all witnesses. Discretion lies with
the prosecution whether to tender or not,
witness to prove its case. Adverse inference
against prosecution can be drawn only if
withholding of witness was with oblique
motive.

XII. Generally now-a-days people
avoid to be witness and appear in witnessboxes specially in criminal cases due to the
fear of enmity, therefore, independent
witnesses do not come forward to be testified
on oath in a court of law.

XIII. In Sandeep Vs. State of
UP, (2012) 6 SCC 107, Hukum Singh and
others Vs. State of Rajasthan, 2001 CrLJ
511 (SC), sections 226 and 231 CrPC has
been examined and it is held that it is
expected from the public prosecutor to
produce evidence in support of the
prosecution and not in derogation of the
prosecution case. If he knew at this stage
itself certain witnesses might not support
the prosecution case, he is at liberty to state
before the court that fact. It would be
unreasonable to insist on the public
prosecutor to examine those persons as
witnesses for prosecution.

XIV. In Chhotanney Vs. State
of UP, AIR 2009 SC 2013, Gangadhar
Behera Vs. State of Orissa, (2002) 8 SCC
381 and in Bhagwan Jagannath Markad
(supra) it is held that doubt should be
reasonable only then benefit of doubt can
be given to the accused persons. Doubts
would be called reasonable if they are free
from a zest for abstract speculation. Law
cannot afford any favourite other than truth.
To constitute a reasonable doubt, it must be
free from an over-emotional response.
Doubts must be actual and substantial
doubts. A reasonable doubt is not an
imaginary, trivial or a merely possible
doubt; but a fair doubt based upon reason
and common sense. It must be grow out of
the evidence in the case. Exaggeration of
the rule of benefit of doubt can result in
miscarriage of justice. Letting the guilty
escape is not doing justice. A Judge
presides over the trial not only to ensure
that no innocent is punished but also to see
that guilty does not escape.

XV. In Raja Vs. State of
Karnataka, (2016) 10 SCC 506, State of
UP Vs. Chhoteylal, AIR 2011 SC 697 and
Santosh Moolya (supra) and in so may
other cases the Apex Court held that in a
case of rape testimony of prosecutrix stands
562 INDIAN LAW REPORTS ALLAHABAD SERIES
at par with that of an injured witness. It is
really
not
necessary
to
insist
for
corroboration if the evidence of the
prosecutrix inspires confidence and appears
to be credible. The accused can be
convicted on the basis of sole testimony of
the
prosecutrix
without
any
further
corroboration provided the evidence of the
prosecutrix inspires confidence and appears
to be natural and trivial. Woman or girl
raped is not an accomplish and to insist for
corroboration of the testimony amounts to
insult to womanhood. The evidence of a
victim of a sex offence is entitled to great
weight
absence
of
corroboration
notwithstanding. Corroboration in the form
of eye-witness account of an independent
witness may often be forthcoming in
physical assault cases but such evidence
cannot be expected in sex offences having
regard to the very nature of the offence. It
would therefore be adding insult to the
victim to insist of corroboration drawing
inspiration from rules devised by the courts
in the western world. As a general rule,
there is no reason to insist of corroboration
except from the medical evidence where
having regard to the circumstances of the
case, medical evidence can be expected to
be forthcoming subject to disqualification
that corroboration can be insisted upon
when a woman having attained majority is
found in a compromising position and there
is likelihood of her having levelled such an
acquisition on account of the instinct of
self-preservation or when probability factor
is found to be out of tune.

XVI. In the present case the
victim was only 7 years old at the time of
incident and from the medical report and
the evidence, her testimony has been
corroborated. In Ganga Singh Vs. State of
MP, AIR 2013 SC 3008, it is held that
where a girl child is the victim of offence
of rape punishable under Section 376 IPC,
she has to be given some weight as is given
to an injured witness and her evidence
needs no corroboration.

XVII. In State of Tamil Nadu
Vs. Ravi @ Nehru, 2006 (55) ACC 1005
(SC), a girl of five years old was raped and
the opinion of the doctor was that penis
would not have gone inside the girl's
vagina, the Supreme Court held that the
opinion of the doctor was irrational when
hymen was found torn. Even a slight
penetration of penis into vagina without
rupturing the hymen would constitute rape.
Evidence of victim of sexual assault stands
at par with the evidence of an injured
witness. Conviction of her sole testimony
without corroboration is justifiable.

XVIII. In this case an argument
has been advanced by the counsel for the
appellants that the statement of the victim
has not been recorded by the Magistrate
under Section 164 CrPC. In Baijnath Sigh
Vs. State of Bihar, 2010 (70) ACC 11
(SC), Utpal Das Vs. State of West
Bengal, AIR 2010 SC 1894, it is held that
statement recorded under Section 164 CrPC
cannot be used as substantive evidence. It
can be used only to corroborate or
contradict the witness in accordance with
the provisions under Sections 145 and 157
of the Evidence Act. It appears that
considering the tender age of the victim,
the IO did not produce her before the
Magistrate for recording her statement
under Section 164 CrPC.

XIX. For the fault of the
Investigating Officer the prosecution would
not suffer.

28. In the case at hand informant PW1 has proved the facts of the case, the only
2 All. Lal Jeet & Ors. Vs. State of U.P.
563
contradiction is that according to FIR
version when the informant and other
persons reached on the spot, they found
that Lal Jeet and Chintu were catching hold
the victim and Tej Bahadur was raping her.
Contrary to that PW-1 has deposed in the
court that when he alongwith other persons
reached on the spot they saw that Tej
Bahadur and Lal Jeet were holding the
victim while Lal Jeet was raping her. It
might be a writing mistake. The evidence
has to be considered as a whole.

29.